Let the demolition of the CFMEU begin

It is common for people to take a voyeuristic schadenfreude in reading insults about others. I'm aware many readers like reading insults about this columnist, so let's get started. First, my corruption. Then my hypocrisy.

Federal Labor MP Laurie Ferguson posted an item on his website on April 16 last year: ''The NSW Supreme Court has rejected an appeal by David Ballard against a decision where his witnesses' evidence was found to be 'false', 'implausible' and 'far fetched'. Will the Herald's Paul Sheehan offer profound (if delayed) apologies, after his advertising campaign for Ballard?''

Ferguson returned to the fray on November 27, via Twitter (a goldmine of indiscretion): ''You were less interested reporting the absolute demolition of your close mate [Charkey's] court effort despite your friendly articles.'' A few minutes later he made a more direct accusation: ''You are more than a close mate and you know the judgment was an unmitigated total demolition of your slanderous campaign.''

Given that I have never spoken to the plaintiff in this case, building contractor David Ballard, a former boxing champion known as Charkey Ramon, before or after his original court case, Ferguson was not only wrong but he has nailed his colours to the mast of the under-siege Construction, Forestry, Mining and Energy Union. Let's just say his objectivity is clouded because his younger brother Andrew, a CFMEU official, was mocked by me for his performance under cross-examination in Ballard v Multiplex.

Then there is the CFMEU's staunch ally in the NSW Parliament, the Greens MP David Shoebridge. On May 22, 2012, he told Parliament: ''I have known Andrew Ferguson for well over a decade, including in my professional capacity as a lawyer representing the Construction, Forestry, Mining and Energy Union from time to time … Now that a superior court of record has made a conclusive finding against the likes of Ballard … it is clear that Mr Ferguson and the CFMEU are owed an apology. We are all still waiting, Mr Sheehan.''

I am familiar with the judgment of Justice Robert McDougall in this matter, all 76,000 words of it. In 2012 I prepared a robust dissent. It was withheld from publication on the grounds of prudence. Times have changed. The scale of corruption touching the CFMEU has become a public issue.

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Let's just say I rate McDougall's judgment as highly as I rate the work of his fellow NSW Supreme Court judge Stephen Campbell in the matter of Regina v Kieren Loveridge. In November, Campbell held that Loveridge would spend a non-parole period of six years in prison for his unprovoked and fatal assault on Thomas Kelly, and unprovoked assaults on Matthew Serrao, Rhyse Saliba, Aden Gazi and Marco Compagnoni, all while he was on probation for a prior assault. This judgment was an insult to the grieving Kelly family and an assault on commonsense.

Now McDougall can observe the unfolding royal commission into the bribes, pay-offs and slush funds endemic in the construction industry, not unlike the evidence laid out in Ballard v Multiplex and the CFMEU. A former CFMEU official Craig Bates gave evidence he received payments from companies that wanted to remain ''preferred contractors'' of the CFMEU. A former finance director of Multiplex, Ian Widdup, gave evidence he made secret cash payments of hundred of thousands of dollars to the union from Multiplex. Former CFMEU organiser John Henderson gave evidence Ballard was forced off a job by the union. Len Anthony gave evidence the CFMEU wanted Ballard out of the industry. former Multiplex employee Joseph Taylor said he attended a meeting where it was decided to lock Ballard out of a construction site, leaving his equipment locked inside.

McDougall inherited this case after the original judge fell ill and thus did not see the overwhelming bulk of the evidence first hand. He found the testimony of the whistle-blowers insufficient as the plaintiff, and two of his key witnesses, Bates and Widdup, had been found to have given false evidence in other matters. The crucial element was the judge's disdain for the criminal history of Bates, which utterly infected his credibility in this case.

Ballard lost his case and again on appeal. His witnesses were shredded by a battery of silks. His personal finances were shredded by the standard legal tactic when big confronts small - attrition via process - and a bill in excess of a $1 million.

The defining fact, which no amount of lawfare can wash away, is that Ballard was an independent contractor who fell foul of the CFMEU and paid a price. Anyone who still doesn't think that collusion has been built into the industrial landscape for decades, at a cost of tens of billions of dollars, should consider the words of Ken Phillips, executive director of the Independent Contractors of Australia, who told me on Friday: ''There is an industrial relations cartel in Australia of big unions and big corporations that have been cutting industrial relations deals then passing on the higher costs … The ICA has presented a 10,000-word submission to the Productivity Commission's inquiry into the construction sector which details our argument that a cartel exists, where major construction companies and unions work to suppress competition in the sector, and we identify cost blowouts of around 20 to 30 per cent.''

Last week, I spoke to the solicitor who did most of the work for the plaintiff in Ballard v Multiplex, to see how Ballard was holding up. She did not know. But she did say this: ''Every time I think about this judgment, it makes me angry.'' Let the royal commission roll on.